A destituição do poder familiar no Brasil: um diagnóstico de impasses e desafios sob a égide da doutrina da proteção integral

Abstract

The Federal Constitution of 1988 and the Statute of the Child and Adolescent consecrate, in the Brazilian legal system, the doctrine of integral protection in contraposition to the previous doctrine of the irregular situation. As a result of the adoption of the new doctrine, the principle of absolute priority and the tripartite responsibility stand out. The responsibility of the family is clearly perceived, because the first environment in which the child is inserted is the familiar environment and in it the child remains inserted during all the experience of the peculiar condition of development. The duty of reciprocal care is inherent in family members. In addition, the legislation assures children and adolescents the fundamental right to family life. In this sense, family power consists of a power-duty that encompasses a set of rights and duties of the parents in relation to the minor child, and this can be done in the best interest of the child and / or the adolescent. Not always, however, the family is this environment of care, and may even become environment of violations of rights. That is why family power can be suspended or deprived. The dismissal, which is at the heart of the present work, is definitive and occurs when one or both parents have a serious misconduct of the duties inherent to parental authority. The loss of family power must, necessarily, be determined by judicial decision, being observed the guarantees of the adversary and the ample defense. During the procedural process, the children often remain subject to the protective measure of institutional reception. This research has the main objective of investigating how and to what extent the destitution of family power in the Brazilian context is carried out in line with the doctrine of integral protection and its consequences. For this purpose, bibliographic research was used. We also examined studies containing empirical data on the Brazilian reality. It has been realized that the deadlines imposed by the ECA, in most cases, are not complied with. When the process ends with the dismissal of family power, the age of children and / or adolescents has already advanced a lot, which reflects in a smaller adoption prospects, considering that the interest of the adopters is mostly younger children. It is true that family power cannot be dismissed without first attempting reinsertion, without the State giving support to families and without achieving the ample defense and the contradictory, keeping in mind that maintenance in the natural family should be prioritized. It is also evident that the situation of poverty of families appears as a recurring background in the removal of family power, although the lack of material resources cannot be a motive for the loss of power. At the end of the paper, some possible suggestions for reflection are pointed out.